In the
United States Court of Appeals
For the Seventh Circuit
No. 12-8002
K EVIN S TERK and JIAH C HUNG,
on behalf of themselves and
others similarly situated,
Plaintiffs-Respondents,
v.
R EDBOX A UTOMATED R ETAIL, LLC,
Defendant-Petitioner.
Petition for Permission to Appeal from the
United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 1729—Matthew F. Kennelly, Judge.
S UBMITTED JANUARY 24, 2012—D ECIDED M ARCH 6, 2012
Before P OSNER, R OVNER, and S YKES, Circuit Judges.
P OSNER, Circuit Judge. Redbox, a company that special-
izes in renting DVDs, Blu-ray Discs, and video games
to consumers from automated retail kiosks and is the
defendant in this class action suit under the Video
Privacy Protection Act, 18 U.S.C. § 2710, asks us to allow
2 No. 12-8002
it to take an interlocutory appeal under 28 U.S.C. § 1292(b).
The issue it wants to appeal is whether subsection (e)
of the Act can be enforced by a damages suit under sub-
section (c). The district judge held that it can be;
Redbox asks us to rule that it cannot be.
Interlocutory appeals are frowned on in the federal
judicial system. They interrupt litigation and by inter-
rupting delay its conclusion; and often the issue
presented by such an appeal would have become
academic by the end of the litigation in the district court,
making an interlocutory appeal a gratuitous burden on
the court of appeals and the parties, as well as a
gratuitous interruption and retardant of the district
court proceedings. But there are a number of exceptions
to the final-judgment rule, among them 28 U.S.C. § 1292(b),
which allows the court of appeals in its discretion to
hear an interlocutory appeal if the district court certifies
that the appeal presents “a controlling question of law
as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the
litigation.” There is no doubt that the appeal that Redbox
wants us to hear involves “a controlling question of law
as to which there is substantial ground for difference
of opinion.” But the plaintiffs argue that answering
that question will not “materially advance the ultimate
termination of the litigation” because they have
pleaded another ground for relief—that Redbox violated
subsection (b)(1), which forbids a “video tape service
provider” to “knowingly disclose[], to any person, per-
sonally identifiable information concerning any con-
sumer of such provider.”
No. 12-8002 3
But all that section 1292(b) requires as a precondition
to an interlocutory appeal, once it is determined that the
appeal presents a controlling question of law on which
there is a substantial ground for a difference of opinion, is
that an immediate appeal may materially advance the
ultimate termination of the litigation. This appeal is
almost certain to do so. The plaintiffs’ original com-
plaint was limited to the destruction subsection, (e), and
thus did not allege a violation of the disclosure subsec-
tion, (b)(1), which first appeared in the amended com-
plaint, filed after Redbox moved to dismiss the destruc-
tion claim. If the appeal is not allowed, and the suit
proceeds in the district court on both the disclosure
and destruction claims, the completion of the litigation
will take longer than if the destruction claim is out of
the case, especially since that claim appears to be
the plaintiffs’ main one, with the disclosure claim
perhaps just a life jacket. Moreover, uncertainty about
the status of the destruction claim may delay settle-
ment (almost all class actions are settled rather than
tried), and by doing so further protract the litigation.
That is enough to satisfy the “may materially advance”
clause of section 1292(b); neither the statutory language
nor the case law requires that if the interlocutory
appeal should be decided in favor of the appellant
the litigation will end then and there, with no further
proceedings in the district court. McFarlin v. Conseco
Services, LLC, 381 F.3d 1251, 1259 (11th Cir. 2004); In re
Baker & Getty Financial Services, Inc., 954 F.2d 1169, 1172
and n. 8 (6th Cir. 1992); compare White v. Nix, 43 F.3d
374, 378-79 (8th Cir. 1994).
4 No. 12-8002
So we accept the appeal and move to the merits,
which, having been adequately briefed in the petition
for permission to appeal and the plaintiffs’ response to
the petition, we can decide without additional briefing.
We will have to quote a good deal of the Video Privacy
Protection Act in order to explain and resolve the issue
that the appeal presents:
18 U.S.C. § 2710. Wrongful Disclosure of Video Tape
Rental or Sale Records:
(a) Definitions.—For purposes of this section—
(1) the term “consumer” means any renter, purchaser,
or subscriber of goods or services from a video tape
service provider . . .;
(3) the term “personally identifiable information”
includes information which identifies a person as
having requested or obtained specific video
materials or services from a video tape service pro-
vider; and
(4) the term “video tape service provider” means any
person, engaged in the business, in or affecting inter-
state or foreign commerce, of rental, sale, or delivery
of prerecorded video cassette tapes or similar audio
visual materials, or any person or other entity to
whom a disclosure is made under subparagraph (D)
or (E) of subsection (b)(2), but only with respect to
the information contained in the disclosure.
(b) Video tape rental and sale records.—
(1) A video tape service provider who knowingly
discloses, to any person, personally identifiable infor-
No. 12-8002 5
mation concerning any consumer of such provider
shall be liable to the aggrieved person for the relief
provided in subsection [(c)]. [The statute says (d),
but this must be an error, not only because the only
“relief” provided there is exclusion of the personally
identifiable information from evidence, but also
because it is very unlikely that a video tape service
provider would ever be submitting, as evidence in a
legal proceeding, personally identifiable information
that the provider had disclosed.]
(2) A video tape service provider may disclose per-
sonally identifiable information concerning any con-
sumer— . . .
(F) pursuant to a court order, in a civil proceeding
upon a showing of compelling need for the informa-
tion that cannot be accommodated by any other
means . . . .
(c) Civil action.—
(1) Any person aggrieved by any act of a person in
violation of this section may bring a civil action in
a United States district court.
(2) The court may award—
(A) actual damages but not less than liquidated dam-
ages in an amount of $2,500;
(B) punitive damages;
(C) reasonable attorneys’ fees and other litigation
costs reasonably incurred; and
(D) such other preliminary and equitable relief as
the court determines to be appropriate . . . .
6 No. 12-8002
(d) Personally identifiable information.—
Personally identifiable information obtained in
any manner other than as provided in this section
shall not be received in evidence in any trial, hearing,
arbitration, or other proceeding in or before any
court, grand jury, department, officer, agency, regula-
tory body, legislative committee, or other authority
of the United States, a State, or a political subdivision
of a State.
(e) Destruction of old records.—
A person subject to this section shall destroy person-
ally identifiable information as soon as practicable,
but no later than one year from the date the informa-
tion is no longer necessary for the purpose for which
it was collected and there are no pending requests
or orders for access to such information under sub-
section (b)(2) or (c)(2) or pursuant to a court order . . . .
The statute is not well drafted, even after the error
in section (b)(1) is corrected. The biggest interpretive
problem is created by the statute’s failure to specify
the scope of subsection (c), which creates the right of
action on which this lawsuit is based. If (c) appeared
after all the prohibitions, which is to say after (d) and (e) as
well as (b), the natural inference would be that any
violator of any of the prohibitions could be sued for
damages. But instead (c) appears after just the first pro-
hibition, the one in subsection (b), prohibiting disclosure.
This placement could be an accident, but we agree with
the only reported appellate case to address the issue,
Daniel v. Cantrell, 375 F.3d 377, 384-85 (6th Cir. 2004),
No. 12-8002 7
that it is not; that the more plausible interpretation is
that it is limited to enforcing the prohibition of disclosure.
For one thing, the disclosure provision, but not the
others, states that a “video tape service provider who
knowingly discloses, to any person, personally identifi-
able information . . . shall be liable to the aggrieved per-
son for the relief provided in subsection [c],” which
includes damages. And for another thing, it would be
odd to create a damages remedy for “receiv[ing]” infor-
mation in evidence in an official proceeding; that would
make a judge who admitted evidence in violation of
subsection (d) liable in damages, erasing the absolute
immunity from suit for acts taken in a judge’s judicial
capacity.
Nor would it make a lot of sense to award damages
for a violation of the requirement of timely destruc-
tion of personally identifiable information, in sub-
section (e)—the specific issue presented by this appeal.
How could there be injury, unless the information, not
having been destroyed, were disclosed? If, though not
timely destroyed, it remained secreted in the video service
provider’s files until it was destroyed, there would be no
injury. True, subsection (c)(2)(A) allows $2,500 in “liqui-
dated damages,” without need to prove “actual damages,”
but liquidated damages are intended to be an estimate
of actual damages, Pace Communications, Inc. v. Moonlight
Design, Inc., 31 F.3d 587, 593 (7th Cir. 1994), and if failure
of timely destruction results in no injury at all because
there is never any disclosure, the only possible estimate
of actual damages for violating subsection (e) would be
zero. In interpreting a statute even less indicative that an
8 No. 12-8002
actual injury must be proved to entitle the plaintiff to
statutory damages (the statute read “actual damages
sustained by the individual as a result of the refusal or
failure [of a federal agency to comply with the Privacy
Act], but in no case shall a person entitled to recovery
receive less than the sum of $1,000,” 5 U.S.C.
§ 552a(g)(4)(A)), the Supreme Court held that the plain-
tiff could not obtain statutory damages without proof of
an actual injury. Doe v. Chao, 540 U.S. 614 (2004); see also
Van Alstyne v. Electronic Scriptorium, Ltd., 560 F.3d 199,
205–06 (4th Cir. 2009) (Stored Communications Act).
It is true that two court of appeals decisions involving
language, identical to that in this case, in the Driver’s
Privacy Protection Act, 18 U.S.C. §§ 2721 et seq., a parallel
statute to the Video Privacy Protection Act, distinguish
Doe v. Chao and hold that injury need not be proved to
entitle the plaintiff who proves a violation of the statute
to the statutory liquidated damages. Pichler v. UNITE,
542 F.3d 380, 398-400 (3d Cir. 2008); Kehoe v. Fidelity
Federal Bank & Trust, 421 F.3d 1209, 1212-16 (11th Cir.
2005). We need not decide whether the efforts of those
courts to distinguish Doe v. Chao are successful. In both
Pichler and Kehoe there was an unlawful appropriation
of private personal information, and as the courts
pointed out this is a perceived although not a quantifiable
injury. See 542 F.3d at 398-99; 421 F.3d at 1213. It corre-
sponds to disclosure of personal information in violation
of subsection (b) of the Video Privacy Protection Act.
But a violation of (e) is the failure to destroy private
information even if lawfully obtained and not disclosed.
The injury inflicted by such a failure is enormously at-
No. 12-8002 9
tenuated, and it would be no surprise if Congress had
decided—as the placement of the damages section
suggests—not to provide a damages remedy, let alone
a damages remedy requiring no proof of injury.
This analysis of the unsuitability of subsections (d) and
(e) to be predicates for awards of damages lends meaning
and significance to the portion of (b)(1) that makes the
“video tape service provider who knowingly discloses,
to any person, personally identifiable information . . .
liable to the aggrieved person for the relief provided
in subsection [(c)]” (emphasis added)—relief that includes
damages. Unlawful disclosure is the only misconduct
listed in the statute for which an award of damages is
an appropriate remedy, so it makes sense for the
damages section to be sited between the disclosure pro-
hibition and the other prohibitions; it belongs with the
former.
It is true that subsection (c) authorizes other relief
besides just damages, relief less obviously inappropriate
to a violation of (d). That is particularly true of equitable
relief, authorized in subsection (c)(2)(D). But when all
that a plaintiff seeks is to enjoin an unlawful act, there is
no need for express statutory authorization; “absent
the clearest command to the contrary from Congress,
federal courts retain their equitable power to issue in-
junctions in suits over which they have jurisdiction.”
Califano v. Yamasaki, 442 U.S. 682, 705 (1979); see also
Plata v. Schwarzenegger, 603 F.3d 1088, 1094 (9th Cir. 2010);
Wheeling-Pittsburgh Steel Corp. v. Mitsui & Co., 221 F.3d
924, 927 (6th Cir. 2000).
10 No. 12-8002
We cannot be certain that we have divined the
legislative meaning correctly. But since we can’t grill
Congress on the matter, it is enough that we think our
interpretation superior to the district court’s, and we
are fortified in that belief by the Sixth Circuit’s decision.
The ruling by the district court is
R EVERSED.
3-6-12